Ortiz v. Equifax Credit Information Solutions, Inc. et al

Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 1/9/2018 GRANTING 2 Motion to Proceed IFP and DIMISSING 1 Complaint with leave to amend. Plaintiff is GRANTED 30 days from the date of this order to file an amended complaint. (Fabillaran, J)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RENE ORTIZ,
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Plaintiff,
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No. 2:17-cv-530-MCE-EFB PS
v.
ORDER
EQUIFAX CREDIT INFORMATION
SOLUTIONS, INC., RICHARD F.
SMITH,
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Defendants.
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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her
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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.
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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
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Determining that plaintiff may proceed in forma pauperis does not complete the required
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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the
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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on
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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed
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below, plaintiff’s complaint fails to state a claim and must be dismissed.
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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,
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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it
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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of
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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of
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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to
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relief above the speculative level on the assumption that all of the complaint’s allegations are
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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable
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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.
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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
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Under this standard, the court must accept as true the allegations of the complaint in
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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading
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requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a
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complaint to include “a short and plain statement of the claim showing that the pleader is entitled
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to relief, in order to give the defendant fair notice of what the claim is and the grounds upon
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which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).
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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only
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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,
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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,
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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction
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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a
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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be
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authorized by a federal statute that both regulates a specific subject matter and confers federal
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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity
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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the
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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World
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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction
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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys
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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
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Plaintiff brings this action against Equifax Credit Information Solutions (“Equifax”) and
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its Chief Executive Officer, Richard F. Smith, alleging claims for violation of the Fair Credit
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Reporting Act (“FCRA”). ECF No. 1. His complaint alleges that Equifax issued a consumer
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credit report for plaintiff that included inaccurate information regarding an account with the
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Social Security Administration. Id. at 6. Plaintiff notified Equifax that he disputed the
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information provided on the credit report. Although Equifax subsequently informed the
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“furnishers of information of plaintiff’s disputes,” the “information continued to be reported on
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plaintiff’s credit report.” Id. Plaintiff alleges causes of action for willful and negligent
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noncompliance with the FCRA based on defendants alleged failure to comply with 15 U.S.C.
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§§ 1681e(b), 1681i, 1681g. Id.
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The complaint’s allegations are too vague and conclusory to state a claim for violation of
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the FCRA. “In order to make out a prima facie violation under § 1681e(b), a consumer must
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present evidence tending to show that a credit reporting agency prepared a report containing
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inaccurate information. The FCRA does not impose strict liability, however—an agency can
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escape liability if it establishes that an inaccurate report was generated despite the agency’s
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following reasonable procedures.” Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333
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(9th Cir.1995) (citations omitted). 15 U.S.C. 1681i requires credit reporting agencies to
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reinvestigate the completeness or accuracy of an item of information when notified of a dispute
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by the consumer. 15 U.S.C. § 1681i (1)(A). Like section 1681e(b), section 1681i requires a
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plaintiff to make a “prima facie showing of inaccurate reporting.” Dennis v. BEH-1, LLC, 520
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F.3d 1066, 1069 (9th Cir. 2008). Under the FCRA, information can be inaccurate either “because
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it is patently incorrect, or because it is misleading in such a way and to such an extent that it can
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be expected to adversely affect credit decisions.” Gorman v. Wolpoff & Abramson, LLP, 584
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F.3d 1147, 1163 (9th Cir. 2009); see Prianto v. Experian Info. Solutions, Inc., No. CV 13–03461–
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TEH, 2014 WL 3381578, *3 (N.D. Cal. July 10, 2014) (“Thus, Plaintiff must allege facts
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sufficient to state a claim that a CRA published a report containing patently inaccurate or
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materially misleading information in order to state a prima facie case for relief under sections
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1681e(b) and 1681i(1)(A).”).
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Here, plaintiff merely provides her conclusion that defendants failed to comply with 15
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U.S.C. §§ 1681e(b) and 1681i by reporting and failing to correct inaccurate information on her
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credit report. Such conclusory allegations fail to provide defendant notice of the basis for her
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claims, and therefore fail to state a claim for relief. Twombly, 550 U.S. at 562-563. Likewise,
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plaintiff fails to state a claim for violation of the FCRA premised on a failure to comply with
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§ 1681g. That section governs disclosures of information by consumer reporting agencies to
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consumers, see 15 U.S.C. § 1681g, but the complaint is devoid of any allegations suggesting that
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defendants failed to follow the disclosure procedures mandated by the FCRA.
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Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff
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is granted leave to file an amended complaint to allege, if she can, a cognizable legal theory
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against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v.
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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se
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litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff
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choose to file an amended complaint, the amended complaint shall clearly set forth the allegations
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against defendant and shall specify a basis for this court’s subject matter jurisdiction. Any
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amended complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as
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practicable to a single set of circumstances,” as required by Federal Rule of Civil Procedure
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10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as
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required by Eastern District of California Local Rules 130(b) and 130(c). Any amended
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complaint shall also use clear headings to delineate each claim alleged and against which
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defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts
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that support each claim under each header.
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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to
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make an amended complaint complete. Local Rule 220 requires that an amended complaint be
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complete in itself. This is because, as a general rule, an amended complaint supersedes the
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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once
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plaintiff files an amended complaint, the original no longer serves any function in the case.
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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not
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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.
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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.
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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to
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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order
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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.
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Accordingly, IT IS ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.
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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.
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3. Plaintiff is granted thirty days from the date of service of this order to file an amended
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complaint. The amended complaint must bear the docket number assigned to this case and must
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be labeled “First Amended Complaint.” Failure to timely file an amended complaint in
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accordance with this order will result in a recommendation this action be dismissed.
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DATED: January 9, 2018.
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